Citation Nr: 1031009
Decision Date: 08/18/10 Archive Date: 08/24/10
DOCKET NO. 08-17 962 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The Veteran had active service from June 1953 to May 1955.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from an August 2007 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri, which denied the above claims.
In August 2009, a hearing was held before the undersigned Acting
Veterans Law Judge making this decision. See 38 U.S.C.A.
§ 7107(c) (West 2002).
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran asserts that his bilateral hearing loss and tinnitus
are related to his exposure to noise during active service. He
has also contended that his tinnitus was, in part, caused by an
in-service surgical procedure to remove an impacted tooth in 1955
that required chiseling, and/or was caused or aggravated by his
hearing loss. More specifically, the Veteran maintains that his
in-service noise exposure included his initial exposure to
weapons fire during basic training, his exposure to loud noise
from various types of construction equipment in connection with
his service with the 76th Engineers while in Korea, and his
exposure during approximately three months of additional training
in the firing of various anti-aircraft weapons without hearing
protection at Camp Claybanks, Michigan, following his return from
Korea in February 1955. The Veteran has denied any significant
post-service noise exposure, noting that his post-service
occupation with a very well-known tool company involved the
occasional use of power tools for demonstration purposes only.
In this regard, the Veteran was afforded a VA examination in July
2007 to determine the nature and etiology of his hearing loss and
tinnitus. The Board's review of the report from that examination
reveals that although the examiner provided a rationale for her
opinion that it was less likely as not that the Veteran's hearing
loss and tinnitus were the result of in-service acoustic trauma,
the opinion was based on an inaccurate or incomplete assessment
of the record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993)
(a medical opinion based on an inaccurate factual premise is not
probative); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007)
(holding that an examination was inadequate where the examiner
did not comment on the Veteran's report of in-service injury and
instead relied on the absence of evidence in the Veteran's
service medical records to provide a negative opinion).
For example, the examiner concluded that there was no "direct"
evidence of any hearing loss until 1980, when it is clear that
the Veteran has asserted a diminution of hearing loss and
tinnitus since service, and it is also apparent that by noting
that the Veteran had not been involved in combat, the examiner
gave little, if any, consideration, to the Veteran's exposure to
weapons fire during basic training, his exposure to loud noise
from various types of construction equipment in connection with
his service with the 76th Engineers while in Korea, and his
exposure during approximately three months of training in the
firing of various anti-aircraft weapons without hearing
protection at Camp Claybanks, Michigan, following his return from
Korea in February 1955. On the other hand, it is apparent that
the examiner gave unusual weight to the Veteran's post-service
occupational exposure in light of the fact that the Veteran noted
this exposure as a salesman for a tool company was only in
connection with the occasional demonstration of power tools.
In summary, the Board finds that the above-noted deficiencies
have made the July 2007 examination inadequate, and that the
Veteran should therefore be afforded a new VA examination and
opinions as to whether his hearing loss and tinnitus are related
to service. Parenthetically, the Board has also reviewed the
September 2007 supporting private opinion from Dr. D.J. Blum, but
finds that the opinion linking the Veteran's bilateral hearing
loss and tinnitus to noise exposure during service is not
accompanied by any expressed rationale.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
1. The Veteran should be afforded a new
VA audiological examination. The claims
folder must be made available to the
examiner for review and its availability
should be noted in the opinion that is
provided. All indicated studies should be
conducted, and all findings reported in
detail.
The examiner should state whether it is at
least as likely as not (50 percent or
greater) that the Veteran's hearing loss
and tinnitus had their onset during active
service or are related to any in-service
disease, event, or injury, including
acoustic trauma. The examiner should be
informed that exposure to noise during
service has been conceded, and the Veteran
has reported a continuity of
symptomatology since service.
The examiner should also be advised of the
Veteran's exposure to weapons fire during
basic training, his exposure to loud noise
from various types of construction
equipment in connection with his service
with the 76th Engineers while in Korea,
and his exposure during approximately
three months of training in the firing of
various anti-aircraft weapons without
hearing protection at Camp Claybanks,
Michigan, following his return from Korea
in February 1955. The examiner should be
further informed that the Veteran's post-
service occupational noise exposure as a
salesman for a tool company was only in
connection with the occasional
demonstration of power tools.
In the event that it is concluded that it
is at least as likely as not that only the
Veteran's hearing loss is related to
active service, the examiner should also
offer an opinion as to whether it is at
least as likely as not that any tinnitus
was caused or aggravated by the Veteran's
hearing loss.
A detailed rationale for any opinion
expressed should be provided.
2. The RO/AMC should read all medical
opinions obtained to ensure that the
remand directives have been accomplished,
and should return the case to the examiner
if all questions posed are not answered.
3. Finally, readjudicate the claims on
appeal. If the benefits sought on appeal
remain denied, the Veteran and his
representative should be provided a
supplemental statement of the case, and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate outcome
of this case. The appellant need take no action unless otherwise
notified. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).